FIRST DIVISION

[A.C. No. 5653. February 27, 2006.]

JOH SIY LIM, complainant, vs. ATTY. CARMELITO A.

MOTAO, respondent.

DECISIO

CALLEJO, SR., J : p

Atty. Carmelito A. Montano stands charged with gross misconduct relative to

his filing of Civil Case No. C-19928 entitled Spouses Tomas See Tuazon and
atividad See Deecho v. John Siy Lim and the Register of Deeds of Caloocan City. 1(1)

It appears that complainant John Siy Lim was the defendant in Civil Case No.
C-14542 for reformation of contract, quieting of title, with damages, then pending
before the Regional Trial Court (RTC) of Caloocan City, Branch 131. 2(2) The subject
of the dispute was a 650-square meter conjugal lot along A. del Mundo Street, 7th
Avenue, Caloocan City covered by Transfer Certificate of Title (TCT) No. 860. After
trial, the RTC ruled in favor of defendant (complainant herein), and declared that the
deed of sale the parties executed on July 15, 1987 was an absolute and unconditional
conveyance of subject property by the plaintiff in favor of such defendant. On motion
for reconsideration, however, the trial court reversed itself and declared that the sale
was in fact an equitable mortgage. It thus ordered the cancellation of TCT No. 152621
and the reinstatement of the previous title on the subject property.

The complainant appealed the case to the Court of Appeals, docketed as

CA-G.R. CV No. 40167. In its Decision dated March 31, 1995, the appellate court
reversed the ruling of the RTC, to wit:

WHEREFORE, the appealed Order dated November 16, 1992, is hereby

REVERSED and SET ASIDE, and the original Decision of the trial court, dated
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 December 2, 1991, hereby REINSTATED, with the modification that
plaintiff-appellee is ordered to pay defendant-appellant the sum of Five
Thousand (P5,000.00) Pesos a month as reasonable rental for the use and
occupation of Apartment No. 161 from July 15, 1988 until the premises shall
have been vacated and possession thereof peacefully turned over to
defendant-appellant.

The counterclaim for attorney's fees of defendant-appellant is DENIED.

There is no clear showing that the action taken by plaintiff-appellee was done in
bad faith. There should be no penalty on the right to litigate. 3(3)

The aggrieved party elevated the matter to this Court, and the petition was
docketed as G.R. No. 119794. On October 3, 2000, the Court affirmed the ruling of
the CA and denied the petition. 4(4) Entry of judgment was made of record on October
3, 2000. 5(5)

On January 4, 2002, respondent filed a Notice of Appearance 6(6) as counsel of

Tomas See Tuazon (the losing party) in the RTC of Caloocan City, Branch 131 in
Civil Case No. C-14542. On January 7, 2002, he filed, in behalf of his client, a
"Motion to Comply to [sic] Decision without Writ," 7(7) worded as follows:

1. Plaintiff is aware that pursuant to the decision of the court, as

affirmed by the Court of Appeals and the Supreme Court, the decision on the
present case had already become final and executory.

2. In order to avoid undue inconvenience on the part of herein

defendant, plaintiff shall voluntarily settle the money judgment as stated in the
decision sought to be enforced. cDACST

3. The plaintiff will be filing Eight Hundred Ten Thousand

(P810,000.00) Pesos, equivalent to 162 months of rent as per decision and the
same to be covered by supersedeas bond issued by a reliable insurance company
to answer for said obligation.

4. Every month starting February 15, 2002, plaintiff shall deposit to

the court the amount of P5,000.00 as monthly rent. 8(8)

On the same date, respondent, in behalf of his clients (the spouses Tomas See
Tuazon) filed the Complaint 9(9) for nullity of TCT and other documents,
reconveyance, maintenance of physical possession before the RTC of Caloocan City,
eventually raffled to Branch 121 thereof (Civil Case o. C-19928).

Meantime, on February 19, 2002, Judge Luisito C. Sardillo of Branch 126

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 10(10) issued an Order in Civil Case No. C-14542 granting the Motion for
11(11)

Execution with Manifestation earlier filed by the prevailing party (complainant

herein), and denying for lack of merit, the "Motion to Comply to [sic] Decision
without Writ" filed by respondent counsel.

This prompted the complainant to file the instant complaint for disbarment
against respondent. In his Complaint-Affidavit 12(12) dated March 20, 2002,
complainant alleged that respondent filed the complaint in Civil Case No. C-19928
out of malice, pointing out that it involves "the same parties, the same causes of action
and relief prayed for as that of Civil Case No. C-14542." Thus, the complainant
prayed that the respondent be "disbarred and/or suspended from the practice of law for
his gross misconduct," on the following allegation:

6. Evidently, I have been subjected to harassment by the antics of the

respondent in filing a recycled case docketed as Civil Case No. C-19928 on
January 07, 2002. Respondent is guilty in abetting the conduct of his clients,
Sps. Tuazon. He has clearly violated his lawyer's oath not to promote or sue
groundless, false or unlawful suits among others. Instead of counseling his
clients to abide and obey the decision of our Supreme Court, the final arbiter of
all controversies and disputes, he is showing disrespect to a final and executory
decision of our court. 13(13)

In his Comment, 14(14) respondent denied the allegations against him. While he
admitted that he filed Civil Case No. C-19928 as counsel for the plaintiff therein, he
claimed that it was not filed with malicious intent. Moreover, while the new case
involved the same party, it was for a different cause of action and relief, and, as such,
the principle of res judicata did not apply. He further explained that the complaint in
Civil Case No. C-14542 was for declaratory relief or reformation of instrument, while
Civil Case No. 19928 was for annulment of title. He accepted the case based on "his
professional appreciation that his client had a good case."

In his Reply, 15(15) the complainant stressed that the respondent was guilty of
forum shopping; Civil Case No. C-19928 was nothing but a revival of the old
complaint; and "the lame excuse of the respondent that the present case is an action in
rem while the other case is an action in personam" did not merit consideration.

On November 25, 2002, the Court resolved to refer the matter to the Integrated
Bar of the Philippines (IBP) for investigation, report and recommendation. 16(16)

On September 1, 2003, the IBP Commission on Bar Discipline assigned the

case to Commissioner Salvador L. Peña. Only the counsel for the respondent appeared
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 at the mandatory conference held on September 30, 2003. Finding that there were no
factual issues in the case, Commissioner Peña terminated the mandatory conference
and ordered the parties to submit their respective verified Position Papers, and,
thereafter, considered the case submitted for resolution.

The case was re-assigned to Commissioner Doroteo B. Aguila who submitted

his Report and Recommendation dated May 9, 2005, finding the respondent guilty of
misconduct. It was recommended that respondent be meted a two months' suspension
from the practice of law.

According to the Investigating Commissioner, the elements of res judicata are

present in this case as to bar the filing of Civil Case No. C-19928 since (a) the
judgment in Civil Case No. C-14542, upholding the validity of the absolute deed of
sale, had attained finality; (b) the court which rendered the decision had the required
jurisdiction; and (c) the disposition of the case was a judgment on the merits.

On October 22, 2005, the Board of Governors of the IBP Commission on Bar
Discipline issued Resolution No. XVII-2005-108, adopting said Report and
Recommendation, with the modification that respondent be suspended from the
practice of law for six (6) months. CTAIHc

We agree that respondent is administratively liable.

In this case, it is clear that respondent is guilty of forum shopping. By his own
admission, he was aware that Civil Case No. C-14542 was already final and executory
when he filed the second case (Civil Case No. C-19928). His allegation that he "was
not the original counsel of his clients" and that "when he filed the subsequent case for
nullity of TCT, his motive was to protect the rights of his clients whom he believed
were not properly addressed in the prior case for reformation and quieting of title,"
deserves scant consideration. As a responsible member of the bar, he should have
explained the effect of such final and executory decision on his clients' rights, instead
of encouraging them to file another case involving the same property and asserting the
same rights.

The essence of forum shopping is the filing of multiple suits involving the
same parties for the same cause of action, either simultaneously or successively, for
the purpose of obtaining a favorable judgment. It exists when, as a result of an adverse
opinion in one forum, a party seeks a favorable opinion in another, or when he
institutes two or more actions or proceedings grounded on the same cause to increase
the chances of obtaining a favorable decision. An important factor in determining its
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 existence is the vexation caused to the courts and the parties-litigants by the filing of
similar cases to claim substantially the same reliefs. 17(17) Forum shopping exists
where the elements of litis pendentia are present or where a final judgment in one case
will amount to res judicata in another. 18(18) Thus, the following requisites should
concur:

(a) identity of parties, or at least such parties as represent the same interests in
both actions, (b) identity of rights asserted and relief prayed for, the relief being
founded on the same facts, and (c) the identity of the two preceding particulars
is such that any judgment rendered in the other action will, regardless of which
party is successful, amount to res judicata in the action under consideration. . . .
19(19)

The fact that the parties in the first and second cases are not identical will not
prevent the application of the principle of res judicata. Mere substantial identity of
parties, or a community of interests between a party in the first case and a party in the
subsequent case, even if the latter was not impleaded in the first case, is sufficient.
20(20) Moreover, a party cannot, by varying the form of action or adopting a different

method of presenting his case, escape the operation of the principle that one and the
same cause of action shall not be twice litigated between the same parties or their
privies. 21(21) This was what respondent resorted to in order to give some semblance of
merit to the complaint for annulment of title. He should have realized that the ruling
of the Court in Tuazon v. Court of Appeals 22(22) effectively determined with finality
the rights and obligations of the parties under the questioned deed of sale.

A lawyer owes fidelity to the cause of his client but not at the expense of truth
and the administration of justice. 23(23) The filing of multiple petitions constitutes
abuse of the Court's processes and improper conduct that tends to impede, obstruct
and degrade the administration of justice and will be punished as contempt of court.
Needless to state, the lawyer who files such multiple or repetitious petitions (which
obviously delays the execution of a final and executory judgment) subjects himself to
disciplinary action for incompetence (for not knowing any better) or for willful
violation of his duties as an attorney to act with all good fidelity to the courts, and to
maintain only such actions as appear to him to be just and are consistent with truth
and honor. 24(24)

The filing of another action concerning the same subject matter, in violation of
the doctrine of res judicata, runs contrary to Canon 12 of the Code of Professional
Responsibility, which requires a lawyer to exert every effort and consider it his duty to
assist in the speedy and efficient administration of justice. By his actuations,
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 respondent also violated Rule 12.02 25(25) and Rule 12.04 26(26) of the Code, as well as
a lawyer's mandate "to delay no man for money or malice." 27(27)

Lawyers should be reminded that their primary duty is to assist the courts in the
administration of justice. Any conduct which tends to delay, impede or obstruct the
administration of justice contravenes such lawyer's duty. Indeed, the Court has time
and again warned not to resort to forum shopping for this practice clogs the court
dockets. 28(28)

While we rule that the respondent should be sanctioned for his actions, we also
note that the power to disbar should be exercised with great caution, to be imposed
only in a clear case of misconduct that seriously affects the standing and character of
the lawyer as an officer of the Court and as a member of the bar. Disbarment should
never be decreed where any lesser penalty could accomplish the end desired. 29(29)

WHEREFORE, for violating Canon 12 of the Code of Professional

Responsibility, respondent Atty. Carmelito A. Montano is SUSPENDED from the
practice of law for a period of six (6) months. He is STERNLY WARNED that any
future violation of his duties as a lawyer will be dealt with more severely. This
Decision is immediately executory. Atty. Montano is DIRECTED to inform the Court
of the date of receipt of this decision. cDCaTS

SO ORDERED.

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 Endnotes

1 (Popup - Popup)
1. Rollo, pp. 17-24.

2 (Popup - Popup)
2. The judge who originally heard the case was Judge Antonio J. Fineza, who was found
guilty of gross misconduct in this Court's Decision of May 5, 2003 in A.M. No.
RTJ-02-1705 [450 Phil. 642 (2003)], for his refusal to issue a writ of execution in
said case. It appears that the case was later transferred to Branch 126 (id. at 7-17).

3 (Popup - Popup)
3. Id. at 40.

4 (Popup - Popup)
4. Id. at 31-46.

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5. Id. at 47.

6 (Popup - Popup)
6. Id. at 4.

7 (Popup - Popup)
7. Id. at 5-6.

8 (Popup - Popup)
8. Id. (Emphasis supplied).

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 9 (Popup - Popup)
9. Id. at 17-24.

10 (Popup - Popup)
10. As earlier noted, the case was transferred to this sala.

11 (Popup - Popup)
11. Rollo, pp. 48-54.

12 (Popup - Popup)
12. Id. at 1-2.

13 (Popup - Popup)
13. Id. at 2.

14 (Popup - Popup)
14. Id. at 58-62.

15 (Popup - Popup)
15. Id. at 63-67.

16 (Popup - Popup)
16. Id. at 68.

17 (Popup - Popup)
17. Foronda v. Guerrero, A.C. No. 5469, August 10, 2004, 436 SCRA 9, 23.

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 18 (Popup - Popup)
18. T'Boli Agro-Industrial Development, Inc. v. Solilapsi, 442 Phil. 499, 508 (2002).

19 (Popup - Popup)
19. Id.

20 (Popup - Popup)
20. Dapar v. Biascan, G.R. No. 141880, September 27, 2004, 439 SCRA 179, 199, citing
Rovels Enterprises, Inc. v. Ocampo, 439 Phil. 777, 790-791 (2002).

21 (Popup - Popup)
21. J. FERIA AND M.C. NOCHE, CIVIL PROCEDURE ANNOTATED, VOLUME 2,
(2001 ed.) 131, citing Peñalosa v. Tuason, 22 Phil. 303 (1912) and Paz v. Inandan, 75
Phil. 608 (1945).

22 (Popup - Popup)
22. 396 Phil. 32 (2000).

23 (Popup - Popup)
23. Garcia v. Francisco, A.C. No. 3923, March 30, 1993, 220 SCRA 512, 515.

24 (Popup - Popup)
24. Foronda v. Guerrero, supra note 15, at 23.

25 (Popup - Popup)
25. Rule 12.02 — A lawyer shall not file multiple actions arising from the same cause.

26 (Popup - Popup)
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 26. Rule 12.04 — A lawyer shall not unduly delay a case, impede the execution of a
judgment or misuse court processes.

27 (Popup - Popup)
27. See Foronda v. Guerrero, supra note 15, at 24.

28 (Popup - Popup)
28. Sanchez v. Brion, 319 Phil. 67, 70 (1995).

29 (Popup - Popup)
29. Alitagtag v. Atty. Garcia, 451 Phil. 420, 426 (2003).

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